by Alisa C. Boll

One of the most common questions I am asked as a workers’ compensation attorney is, “can my employer fire me for filing a workers’ compensation claim?” This is a good question and particularly during these tough economic times, a very legitimate concern. The short answer to that question is, no. However, it depends on the facts of the situation.

First and foremost, New Jersey is an at-will employment state, which essentially means an employee can be fired for any reason as long as it is not illegal. The Workers’ Compensation Statute NJSA 34:15-39.1 prohibits the termination of an employee in retaliation for filing a workers’ compensation claim or for testifying at a workers’ compensation hearing. If you feel that your termination was for one of these two reasons, you can file a discrimination complaint against your employer with the Division of Workers’ Compensation. You must file the complaint within 180 days of the date of the last act of alleged discrimination. The provisions of the law provide for restoration of your former position and payment of lost wages, however you must be able to perform the essential duties of that position to avail yourself of any remedy under this portion of the Statute.

If your employer’s actions are based upon your disabling condition rather than on your efforts to secure workers’ compensation benefits, you may have recourse to claim a violation of the Americans with Disabilities Act (ADA). Complaints of this nature may be filed by writing or calling the Equal Employment Opportunity Commission at 1801 L Street. NW., Washington, D.C. 20507, 202-663-4900. The EEOC may also be reached from Mercer County and South by calling 215-451-5800.

Generally employees who work under an employment contract can only be terminated for reasons specified in the contract. If you are a member of a union you should speak with your union representative if you feel that your termination was improper.

The most common scenario, is unfortunately, completely legal in the state of New Jersey. Employees can be fired for a legitimate business reason after the filing of a workers’ compensation claim, such as unsatisfactory job performance or excessive absenteeism. Many employers have a policy that an employee will be discharged if he or she is absent from work due to a medical condition for more than 90 days in a calendar year. Therefore, an employee who files a claim for workers’ compensation must do their best to pursue medical treatment and return to work as quickly as possible.

Another scenario is the employee who returns to work after a work injury and a course of medical treatment with permanent work restrictions. If the employee can no longer perform the job that he or she was hired to do, the employer can terminate the employment. Yes, it is true that the employer has to provide “reasonable accommodations” under the ADA if you suffer from a disability. First, this only applies to employers with 15 or more full-time employees and second, an employer does not have to provide a reasonable accommodation if it creates undue hardship for the employer. Examples of an undue hardship include the cost of the accommodation, financial resources of the employer, and the type of operation. It probably sounds unfair that your employer doesn’t automatically have to accommodate your restrictions when the accident happened while you were working. Many employees feel that their employer should be held responsible and required to make accommodations to keep them employed. Unfortunately, in general, the employer does not have a legal obligation to find work for you to do within your restrictions.

If you are concerned that your employer is going to terminate your employment, if you feel they are already looking for a reason to let you go, and you are now afraid to file a claim for workers’ compensation, don’t let that fear stop you from collecting a benefit that you are entitled to under the law. Consultation with a workers’ compensation attorney is free. If you have any questions about your rights when you are hurt at work, make an appointment and meet with an attorney right away.

Alisa C. Boll is a member of Stark & Stark’s Workers’ Compensation Group. For additional information, please contact Ms. Boll: aboll@stark-stark.com.

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